John Locke and the Constitution Act, 1867

Jonathan MacFarlane

Abstract

Historians argue that Confederation was the result of pragmatic and self-interested politics at work in the British North American colonies. Confederation is not considered as having a philosophical dimension. Is it possible that the Canadian founders could have drafted a constitution devoid of any political philosophy? This thesis argues that the Constitution Act, 1867, formerly known as the British North America Act, 1867 is consistent with if not remarkably similar to the liberal political philosophy of John Locke. The thesis argues that the 1867 Constitution Act is compatible with Locke's prescription for government as found in his Second Treatise of Government. The thesis finds consistency between the Act and the Second Treatise in the relationship between the executive and legislative branches of government. The thesis finds consistency between the Constitution Act and Locke's Letter Concerning Toleration, as pertains to rights to religious minority education. The Constitution Act protects the Lockean right not to be taxed without representation. The thesis examines the Constitution Act's residual clause, known as the "p.a.G.G. power," and finds compatibility with Locke. The thesis concludes by comparing contemporary Canadian constitutionalism with the Lockean liberalism in the 1867 Constitution Act. The thesis does not argue that the founders were Lockean in their thinking or their intent when they drafted the 1867 Constitution Act. Rather than seek a causal relationship better left to historians of ideas, the thesis restricts its focus to questions of philosophical correlation.